29. U.S. Statement to the International Law Commission concerning the Effect of Armed Conflict on Treaties and other topics (Nov. 29, 2005)

Statement by the United States of America –

60th UN General Assembly Sixth Committee –

Agenda Item 80 – October/November 2005

Report of the International Law Commission on the Work of its 57th Session – Effects of Armed Conflicts on Treaties/

Diplomatic Protection/Fragmentation of International Law

Thank you Mr. Chairman. I would like to address the items concerning effects of armed conflicts on treaties, diplomatic protection, and fragmentation of international law.

Effect of Armed Conflicts on Treaties

First, I would like to thank the Commission’s Special Rapporteur, Professor Ian Brownlie, for his first report on the effects of armed conflicts on treaties. I would also note the excellence of the analysis and compilation of State practice prepared by the Secretariat, which my government found to be very helpful in understanding the substance and complexity of the issues relating to this topic.

As we all know, the Commission has made a substantial contribution to international law through its work on three multilateral conventions on the law of treaties that are currently in force. The Commission’s work on this important topic can make a further contribution to the codification and development of international law relating to treaties. It is encouraging to see that the Special Rapporteur has adopted an approach that would encourage continuity of treaty obligations in armed conflict in cases where there is no genuine need for suspension or termination.

While the Special Rapporteur produced an entire set of draft articles, I will not attempt to discuss each of them and will not dwell on drafting points. I prefer to mention several issues that my government considers to be important so that the members of the Sixth Committee and the Commission may consider them as work continues on this topic.

Article 4, a key article in the draft, deals with the factor or factors that indicate whether or not a treaty may be terminated or suspended in cases of armed conflict. The Special Rapporteur considered that the intention of the parties at the time of the conclusion of the treaty should be determinative. This seems to my government to be problematic, since generally when parties negotiate a treaty they do not consider how its provisions might apply during armed conflict. In order to address the issue, it is necessary to consider other factors, including the object and purpose of the treaty, the character of the specific provisions in question, and the circumstances relating to the conflict. Acknowledgment of the relevance of such factors is more sensible than reliance on a presumption of intention that may not exist.

Article 5 states that treaties applicable to situations of armed conflict in accordance with their express conditions are operative in cases of armed conflict. A summary of the debate in the Commission included a suggestion that reference should be made in the article to the principle enunciated by the International Court of Justice in the Nuclear Weapons advisory opinion and reiterated in other opinions that while certain human rights and environmental principles do not cease in time of armed conflict, their application is determined by “the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.” My government is pleased to note that in his concluding remarks the Special Rapporteur

agreed that the principle enunciated in the Advisory Opinion should be appropriately reflected in this article.

Article 7 deals with the operation of treaties on the basis of implications drawn from their object and purpose. It is the most complex of the draft articles. It lists twelve categories of treaties that, owing to their object and purpose, imply that they should be continued in operation during an armed conflict. This is problematic because attempts at such broad categorization of treaties always seem to fail. Treaties do not automatically fall into one of several categories. Moreover, even with respect to classifying particular provisions, the language of the provisions and the intention of the parties may differ from similar provisions in treaties between other parties. It would be more productive if the Commission could enumerate factors that might lead to the conclusion that a treaty or some of its provisions should continue (or be suspended or terminated) in the event of armed conflict. The identification of such factors would, in many cases, provide useful information and guidance to States on how to proceed.

I turn now, Mr. Chairman, to the request in paragraph 25 of the Commission’s report for any information governments might wish to provide concerning their practice with regard to this topic. The United States submitted such material at an early stage of the Commission’s work on the Law of Treaties and will endeavor to identify and submit more contemporary practice prior to the fifty-eighth session of the Commission.

Diplomatic Protection

With respect to the topic of diplomatic protection, the United States congratulates the Commission for adopting, on first reading, a complete set of draft articles. We very much appreciate the contribution that the two Special Rapporteurs, Mohamed Bennouna and John Dugard, have made to this topic.

We are pleased that the Commission determined at the last session, at the recommendation of the Special Rapporteur, to omit the “clean hands doctrine” from these draft articles.

We have previously provided extensive written and oral comments on many of the draft articles. We continue to review the complete set of draft articles and commentaries that resulted from the first reading, and intend to submit our written comments to the Commission by January 1, 2006 as requested.

The United States’ general approach to these draft articles stems from our belief that the current project on diplomatic protection should be limited in scope to the codification of customary international law, or at most, vary from or supplement customary international law only as warranted by sound public policy considerations supported by a broad consensus of states. This belief will guide the comments we submit in January.

Fragmentation of International Law

With respect to the issue of fragmentation of international law, the Commission and the Study Group appear to be placing emphasis on ensuring that the outcome of the Commission’s work should be of practical use to legal experts in foreign offices and international organizations, and to judges and administrators coping with questions concerning conflicting and overlapping obligations resulting from different legal sources. We encourage such an approach to the ILC’s work. We also believe, as the Commission appears to, that this topic is not suitable for draft articles.

With respect to the Commission’s work on the issue of hierarchy in international law, we concur with the point agreed in the Study Group that it should not seek to produce a catalogue of norms of jus cogens, in line with previous approach of the Commission to leave the full content of this principle to be worked out in state practice. With respect to the issue of hierarchies that the Commission is addressing, we think it especially important that the Commission not adopt any rule that could be interpreted as limiting the primacy of Charter obligations of the authority of the Security Council. The uncertainty regarding what different states may consider as falling within this category, and in fact what the Commission’s report calls the weaknesses of each of the three categories discussed in the section on hierarchy, makes it in our view particularly appropriate to avoid general pronouncements about the relationship between these categories.

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